Document Type

Article

Publication Date

2001

Center/Program

Columbia Center for Contemporary Critical Thought

Abstract

When I was originally approached to participate in this Symposium on the work and legacy of Joel Feinberg, I immediately began thinking about the influence of his essay The Expressive Function of Punishment on contemporary criminal law theory in the United States. That essay has contributed significantly to a growing body of scholarship associated with the resurgence of interest inexpressive theories of law. In the criminal law area, the expressivist movement traces directly and foremost to Feinberg's essay. As Carol Steiker observes, "Joel Feinberg can be credited with inaugurating the "expressivist" turn in punishment theory with his influential essay, The Expressive Function of Punishment." Matthew Adler, who offers a skeptical overview of expressive theories, similarly traces the movement back to Joel Feinberg:

The work of Professors Pildes, Kahan, and Sunstein ... has given renewed salience and currency to expressive theories of law. But it bears emphasis that their scholarship is simply the most recent contribution to a much older and larger body of scholarly writing about the symbolic cast of legal decisions. For example, students of the criminal law have long debated the expressive dimension of punishment. The famous legal philosopher Joel Feinberg, in a 1965article entitled The Expressive Function of Punishment, rejected the then standard definition of punishment as "the infliction of hard treatment by an authority on a person for his prior failing in some respect," and asserted by contrast that punishment was essentially expressive – that it necessarily had a "symbolic significance largely missing from other kinds of penalties." … Feinberg's article touched off a still-flourishing debate within criminal law scholarship, prompting rebuttals by (among others) C.L. Ten, Michael Moore, and Michael Davis, and defenses by (among others) Robert Nozick, Jean Hampton, Igor Primoratz, Anthony Duff, and, now, Professor Kahan.

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